Understanding How Judges Make Decisions

A large part of being a successful attorney is understanding the psychology of a judge so that you are able to get the results that your client is trying to achieve. In family law, unlike criminal cases and some civil cases, the decision maker is not twelve of your peers, but one person: the judge. Many people have the misconception that “the law is black and white” and the decisions are easy. However, that is very rarely the case and judges have to make really hard decisions hundreds of times per day.

Most experienced litigators know the judge, his/her tendencies and the way they generally make decisions, and can make predictions based on all the prior occasions being in front of a particular judge.

However, what happens when you have a new judge, or you are not familiar with a certain judge? How do you predict what will happen? In January in Riverside county there are many new faces on the bench. Hardly any of the departments have the same judge that they did in 2018.

If we have no experience with the judge how do we strategize? An excellent lawyer understands the psychology of judges in general. There are always exceptions to the rule but generally judges do fall into some general categories.

Scenario 1

Should we hire an expert to testify? That answer is almost always YES. The reason why is judges are not risk takers (see sidebar). They don’t like making decisions based on information that they either aren’t sure about or that conflicts with other information. If you have an expert testify to something, the judge is more likely going to listen and or adopt the recommendation of the expert because it takes the guess work out of the judge’s decision and makes it easier for them (see sidebar, #2). It also takes the risk out of the decision because if anyone questions it (such as the appellate court) they can point to the expert opinion as the basis for their decision.

Scenario 2

You have a lot of new facts or incidences that you want to tell the judge about. Should you tell the Judge during the hearing about everything new that has occurred? You do NOT want to wait and do this during oral argument! When overloaded with new facts during the hearing, judges often will shut down, not make any orders and continue the hearing (see sidebar, #’s 1 and 2) Make bullet points or a chart for the judge and file it ahead of time.

Scenario 3

Parents have been sharing little Johnny week on, week off, for 5 years and nothing really bad has happened. However, Dad wants to drastically change that schedule where mom only has weekends because little Johnny is always late to school. How do we get the judge to make that order? Because of #2 and 3 in the sidebar (on page 3) we know that this is too big of a decision to make for the judge without giving the judge all the information about how many times little Johnny has been late; how that has disadvantaged little Johnny is a lot to take in for the judge. Additionally, because of #3 in the sidebar (on page 3), we know that judges do not like taking risks. Changing this order is a risk for the judge because we know nothing “that bad” has happened with the current order; the safest bet for the judge is to keep things the same.

This is what we know about judges in general:

1. They are overwhelmed with caseloads and as a result, they like things to be made easy for them.

2. Ironically, many of them do not like making decisions, or even if they do, they get decision fatigue.

3. They generally are not risk takers, and like structure, routine, conformity and the status quo (again think of their position — it’s a 9 to 5 position in the same spot, doing the same thing every single day).

A good lawyer knows the law; a great lawyer knows the judge.

— unknown

Therefore, the key to changing this order is to bring in a third party to recommend what the judge should do. This is usually in the form of an in-depth evaluation where the evaluator would assimilate all the information given by both parents and explain to the judge how any conduct by the parents may or may not be in the child’s best interest. Based on that information, that evaluator would then recommend the visitation schedule that is in the child’s best interests and again because of #3 in the sidebar (on page 3), the judge would be more likely to adopt that recommendation.

Are you thinking that you want to change the status quo in parenting time? If so, that is harder to do then getting a new order for the first time. If you want to change the status quo you should have an experienced family law craft a strategy that will get the result you are looking for. A strategy that considers how judges think and make decisions. If you or someone you know wants to change the status quo mention the code MFLGNEWS0219 for a complimentary case analysis.

How are those New Years Resolutions going? Forbes statistics says 80% of people who make New year’s resolutions have quit them by February. However, you can always make them into a S.M.A.R.T. goal. S.M.A.R.T. goals are specific measurable attainable, relevant and timebased. [maybe insert graphic here) Forbes says New Year’s Resolutions tend to be vague and overbroad which is why most people end up ditching them by February. Take your resolutions and re-work into a S.M.A.R.T. goal and recommit. It’s never too late! As long as you aretaking 2 steps forward and 1 backward you are still moving forward and making progress!

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Holly has an illustrious resume, filled with an impressive number of awards and professional recognition in the field of family law. Holly has appeared at thousands of family law hearings and trials and has represented over 500 clients in divorce and custody matters; but that is not the distinguishing characteristic that makes her unique or a great attorney.

Holly has an illustrious resume, filled with an impressive number of awards and professional recognition in the field of family law. Holly has appeared at thousands of family law hearings and trials and has represented over 500 clients in divorce and custody matters; but that is not the distinguishing characteristic that makes her unique or a great attorney.